Jay Sprenkle wrote:
Moreover, in a discussion about open source software licenses I was
part of a few weeks ago, it was brought up that making a work public
domain was a very bad thing to do, because it opened up the author to
a whole bunch of legal liability that they had no recourse from,
which they wouldn't have if they retained their copyright but used a
permissive license. I think the gist was that the software couldn't
have a disclaimer of liability if it is public domain, and so anyone
could sue the author if something went wrong when using it. I don't
know how true this is or not, but would like to see it addressed in
the answer.
This sounds like FUD to me. How can you be held responsible for something
which you have no control over and no knowledge of? IANAL but I think
you need to prove intent or negligence and you'd have a really rough
time proving either one. Well, you might be able to argue intent if you
released virus source ;)
Lawrence Rosen has been the general counsel for the Open Source
Initiative, and he specializes in technology and computer law according
to his website:
http://www.rosenlaw.com/
He has written the following piece about Public Domain in which he
explains that you could in fact open up yourself to liability if you
"put software into the public domain" by giving it away.
http://www.linuxjournal.com/article/6225
Furthermore, he claims that there is no law which allows anyone except
the US Government to put anything into the Public Domain; Something only
passes into the Public Domain when it "grows old and its copyright
expires", except when it is published by the US Government. Thus he
claims that "putting software into the public domain" is an illusion.
Dr. Edward Samuels, who was a respected professor at the New York School
of Law, had an article in Journal of the Copyright Socity, Volume 137
(1993) which is available online:
http://www.edwardsamuels.com/copyright/beyond/articles/public.html#h3b2b
Professor Samuels found back then that it was not a simple matter
whether anyone could put anything into the public domain at all after
the ratification of the Berne Convention in 1989, and the way I read his
article, he seemed to think it was/is not possible.
More information can be found in Professor Samuels' book on copyright,
"The illustrated story of Copyright":
http://www.edwardsamuels.com/illustratedstory/index.htm
However, the Creative Commons site has a Public Domain "license" which
includes the option of dedicating something to the Public Domain by an
overt act of relinquishment of copyright and other rights:
http://creativecommons.org/licenses/publicdomain/
I notice a distinct similarity between the language used in that
dedication and the language required by Dr. Hipp when others contribute
to SQLite.
http://www.sqlite.org/copyright.html
If Larry Lessig, Professor of Law at Stanford, thinks you can dedicate
something to the Public Domain, then you probably can. However, the
licenses on the Creative Commons site are not intended for software, as
their FAQ states:
http://creativecommons.org/faq
The creative commons site also has a lot of links to articles and other
information about the Public Domain:
http://creativecommons.org/about/legal/
In any case, the law scholars and lawyers are divided on this issue.
HTH
Ulrik Petersen
DISCLAIMER: I am not a lawyer. This mail does not constitute legal
advice. You should hire an attorney if you need legal counsel.
